ZAB reference: a time to rethink the criminal process — I

The News International
Thursday, April 07, 2011

PART – 1

On the eve of the 32nd death anniversary of Late Zulfikar Ali Bhutto on 4th April 2011, the PPP government, at the initiative of President Asif Ali Zardari, decided to send a reference under Article 186 of the Constitution of Pakistan to the Supreme Court for reconsideration of the death sentence awarded to the legendary and charismatic leader Zulfikar Ali Bhutto.

Article 186 of the Constitution, which deals with the advisory jurisdiction of the apex court, states: “If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consider question. The Supreme Court shall consider a question so referred and report its opinion on the question to the President.”

The government’s bold effort is laudable but there is no guarantee that its action is likely to produce the desired result. A mere opinion of the court is not likely to do full justice to the deceased, his family, friends, and followers. The government should instead opt for a more efficacious remedy by promulgating a law under Article 188 of the constitution, which would empower the Supreme Court to review its ill-fated decision: Article 188 provides: “The Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.”

The proposed law would cater for such eventualities where unlawful convictions could be set aside by the Supreme Court. Resultantly, the system of Administration of Criminal Justice would ensure that no innocent person is sent to the gallows. Under the present dispensation, if the Supreme Court dismisses a Review Petition against conviction, there is no remedy left behind for redressal of a wrongful judgment. It is my experience as a practicing lawyer nearly for four decades that hundreds of innocent people are sent to gallows because of mal-administration of criminal justice system in the country. This starts from the initial police investigation, where there is a general trend of roping in of every able-bodied member of the family of the accused in case of manslaughter or culpable homicide amounting to murder.

Although the multi-layered court process makes every effort to separate the innocent from the guilty by sifting the grain from the chaff, because of the absence of lack of proper tools of investigation, including DNA tests and forensic examinations, the rate of wrongful convictions continues to be quite high in Pakistan. If we look of the contemporary world, death penalty has been abolished in many countries primarily because of the danger of wrongful convictions.

In England, whose legal legacy we have inherited in Pakistan, the death penalty for murder has been abolished, because of the realization that wrongful convictions and executions do inevitably take place.

The last death sentence in England was awarded to David Chapman at Leeds who was subsequently reprieved and his sentence converted to life in prison. On 8th of November 1965, an Act was passed which effectively abolished capital punishment. From 16th to 18th December in 1969, the House of Commons and the House of Lords respectively confirmed abolition of capital punishment for murder. As such, Peter A. Allen at Walton Prison Liverpool and Gwynne Owen Evans at Strangeways Prison Manchester became the last individuals to be hanged for manslaughter in the United Kingdom.

In this article, we are not laying the case for abolition of death penalty but the focus is on wrongful conviction, which has been defined as a failure of justice system in most fundamental sense whereby an innocent person has been erroneously convicted of a crime that he or she did not commit. In many instances, this has resulted in long and difficult years of incarceration and subsequent execution.

No matter how many cases are successfully prosecuted in our courtrooms, wrongful convictions regardless of how infrequent are a reminder of the fallibility of the justice system and a stain on its well-deserved positive reputation.

Public confidence in the administration of justice is fostered by demonstrating that participants in the criminal justice system are willing to take action to prevent future miscarriage of justice. It is also important to foster public understanding that fair, independent and impartial police investigations and prosecutions of such offences by the respective agencies of province or federation are in the public interest.

When miscarriage of justice occurs it is not usually the result of one mistake but rather a combination of events. Therefore, just as the problem and error being multi-faceted so must the solution and rectification be multi-dimensional. The responsibility to prevent wrongful convictions, therefore, falls on all participants in the criminal justice system i.e. police officers, prosecution counsels, forensic scientists, judges, defence counsels, and the complainant.

All have a role to play in ensuring that innocent people are not convicted of crimes they did not commit. Furthermore, this is an issue that does not touch one province or jurisdiction alone. The goal of all participants in the justice system must be to prevent wrongful convictions occurring in the first place. Unfortunately, based on individual surveys conducted every now and then, it is alarming to note that the rate of convictions in Pakistan exceeds far beyond a country that has inherited a legal system, which if pursued with sincerity and devotion provides an infrastructure for minimizing such misfortunes. The risk of error exists almost in any human endeavour. In any justice system, the consequences of a wrongful conviction can be tragic. Sending a person who commits an offence to prison, along with all able-bodied members of his family particularly those who can pursue the investigation and ultimately the case, is as much a crime as the original crime itself. In the absence of any Social Security System or guarantee whatsoever both families i.e. of an accused and the deceased are generally seen to be totally devastated as a result of the crime.

In the global context, more than 57 countries have devised systems and have brought about legislative enactments including Special Appeal Procedures for post-wrongful convictions. Consequently, on the satisfaction of their boards constituted by each country as fresh evidence comes to light, the courts can reopen the case under the legislative dispensation and reverse their judgments rendered, no matter how many years have elapsed.

As far back as in 1912 an article was published by Edwin M. Bouchard, then a young Law Librarian of the Congress titled “State indemnity for errors of criminal justice” accompanied by an editorial by Prof. John H. Wigmore, the then Dean of North-Western University School of Law. Bouchard’s article was published by the United States Government and forms a permanent Senate document in the United States. In his introductory editorial he asserted: “The State is apt to be indifferent and heartless when its own wrong doings and blunders are to be redressed. The reason lies partly in the difficulties of providing proper remedy and partly in the principle that individual sacrifices must often be borne for the public good”.

Nevertheless, one such glaring instance of such heartlessness not excusable on any grounds is the State’s failure to compensate those who have been erroneously condemned for a crime. Having subjected the citizen to merit less allegations, Prof. Wigmore suggested that the State should at least try to compensate for the wrongdoings done: “To deprive a man of liberty, put him to a heavy expense in defending himself and to cut off his power to earn a living perhaps also to exact money fined – these are sacrifices which the State imposes on him for the public purpose of punishing crime and when it is found that he incurred the sacrifice through no demerit of his own, that he was innocent, then should not the State at least compensate him so far as money can do.”

Prof. Wigmore was so much moved by Bouchard’s article and the thought process ignited thereby that in 1932 he published his own study about wrongful convictions. Subsequently, Judge Frank of the US Court of Appeals published a book entitled “Not Guilty” in 1957 and, thereafter, there have been numerous studies by university professors and judges prompting the US Congress to pass a legislation called “Innocent Protection Act” which, inter alia, establishes rules and procedures governing applications for DNA testing by inmates in the Federal System and exoneration of the innocent through DNA testing. 123 persons on death row were released from 25 states between 1973 and 2005 in USA.

Read Part 2 Here